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Stretching Executive Power in Wartime

May 27, 2007 7:57 pmMay 27, 2007 7:57 pm

“The Constitution has never greatly bothered any wartime president,” wrote Francis Biddle, F.D.R.’s attorney general during World War II. Biddle was writing about Roosevelt’s shameful 1942 decision to evacuate Japanese-Americans from the Pacific Coast and place them in internment camps. But Biddle’s comment applies to all presidents in times of crisis. National survival or, perhaps more accurately, the president’s perception of national survival always takes precedence. George W. Bush has been no exception.

In 1798, during the undeclared war against France, President John Adams supported passage of the Alien and Sedition Acts, which criminalized political dissent and gave the president a free hand to deport any noncitizen he deemed “dangerous to the peace and safety of the United States.”

Ten years later, President Thomas Jefferson sought to enforce the Embargo Act, which prohibited trade with Great Britain, by charging those who violated it with treason – an egregious example of executive overreach that the federal courts quickly rejected.

Andrew Jackson’s contempt for the treaty rights of the Cherokee Nation is a familiar story. Less well-known is Jackson’s attempt to halt the distribution of abolitionist literature in the South by censoring the mail.

Abraham Lincoln suspended the writ of habeas corpus during the Civil War, and in several states he ordered the trial of civilians by military tribunals. Although Congress explicitly authorized Lincoln to suspend the writ, it was a draconian measure that the president believed essential to preserve the Union. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” he asked.

Unlike Adams, Jefferson and Jackson, Lincoln was responding to an armed insurrection that threatened the nation’s survival. Most historians have judged his action as commensurate with the threat.

For more than 100 years, from the expiration of the Sedition Act of 1798 until America’s entry into World War I, the United States had no federal legislation banning rebellious expression. The War of 1812, the Mexican War, the Civil War and the Spanish-American War all were fought without criminalizing the right of dissent.

It was Woodrow Wilson, shortly after his re-election in 1916 but well before America’s entry into World War I, who sought legislation to suppress disloyalty. Wilson requested that Congress give the president absolute authority to censor the press in the event of war, to make it a federal crime to promote the success of America’s enemies and to close the mail to any material deemed “of a treasonable or anarchistic character.” Wilson insisted that the power he requested was “absolutely necessary to the public safety.” After America entered the war, Congress passed the Espionage Act of 1917, which incorporated much of what Wilson asked for but not the authority to censor the press.

F.D.R. may be guilty of the most extreme disregard for civil liberty, although his action was endorsed by Congress and later upheld in two landmark Supreme Court decisions. Unlike Wilson and Adams, F.D.R. had no interest in launching a wartime crusade to promote ideological conformity. But he had been blindsided by the Japanese attack on Pearl Harbor, and he was unwilling to second-guess the War Department when it urged action in the interest of military security. The 1942 relocation of Japanese-Americans from their homes on the West Coast was, in Roosevelt’s view, simply another act of wartime necessity dictated by the risk to America’s defenses.

But there was little justification for the action. Adm. Harold Stark, the chief of naval operations, and Gen. Mark Clark, the Army’s deputy chief of staff, had testified before Congress that the Pacific Coast was in no danger of invasion, and the possibility of Japanese-immigrant-inspired sabotage was no greater than that which might arise from German or Italian immigrants elsewhere in the country.

The initial agitation to remove the Japanese came from California civilians, and was tainted by long-standing racism and greed. The clamor was magnified by the state’s political leaders, including Earl Warren, then California’s attorney general, and was transmitted to Washington by Lt. Gen. John DeWitt, the overall Army commander on the West Coast.

When De Witt’s request arrived at the War Department, the Army general staff vigorously opposed the action. But the Pentagon’s civilian leadership, Secretary Henry L. Stimson and Assistant Secretary John J. McCloy, were convinced of the military necessity and transmitted that view to F.D.R. Roosevelt gave the matter too little attention; if Stimson and McCloy recommended that the Japanese be evacuated, he was not going to dispute them. On Feb. 19, 1942, Roosevelt signed the executive order that they had prepared, authorizing the forcible evacuation of people of Japanese ancestry from a designated war zone along the Pacific Coast.

By presidential directive, 120,000 Japanese residents, 80,000 of whom were American citizens by birth, were taken from their homes, farms and businesses and interned at relocation sites far inland. Roosevelt showed little remorse. In March of 1942, when Henry Morgenthau Jr., the treasury secretary, told F.D.R. about the financial losses the Japanese had suffered, the president said he was “not concerned about that.” History has judged Roosevelt harshly. There is little question that he had the authority to issue the order. Whether he should have done so is another matter.

In the Korean conflict, President Harry Truman stretched his commander-in-chief power to seize and operate the nation’s steel mills. During the Vietnam War, President Richard Nixon sought to prevent The New York Times and The Washington Post from publishing the Pentagon Papers, secret documents pertaining to American military strategy that Daniel Ellsberg had stolen from the Defense Department. In neither case was national survival at risk, and in both cases the Supreme Court struck down the president’s action.

There is an old legal maxim that in time of war the laws are silent: Inter arma silent leges. But the crucial issue is the extent to which the nation is threatened. In the cases of Lincoln and Roosevelt, the survival of the United States hung in the balance. A president will be forgiven by his contemporaries, though not necessarily by later generations, for acting outside the law when that is the case. As more than one Supreme Court justice has said, the Constitution is not a suicide pact. When national survival is not threatened, however, it is essential for a chief executive to resist an unwarranted enlargement of his powers.

A national security concern does not become a war simply because it is baptized as such. President George W. Bush’s questionable use of the metaphor “war on terror” to justify indefinite detention of suspects, warrantless eavesdropping and spying on the reading habits of citizens could invite from historians even more opprobrium than they have cast on the repressive actions taken by other presidents when the survival of the United States was at risk.

A sobering litany of U.S. presidents behaving badly. Even Lincoln. Though the best case for the Confederacy to succeed was still a long shot, does anyone seriously argue that suspending the writ of habeas corpus for the supposed “enemy within” in the North materially influenced the outcome of the Civil War?

But to point out the obvious difference that makes a difference about Bush’s overreach. While Lincoln, Wilson, and FDR all faced major crises not principally of their own making, George Bush disproportionately – and ham-handedly — overreacted to the threat from terrorism that surfaced with 9/11. And then mendaciously manufactured the supposed further crisis with Iraq.

And for this our civil liberties are being shredded, our governmental institutions hijacked by Karl Rove, and our children’s children handed an unnecessary expense that we’ll be lucky to have bottom out at $2 trillion?

George Bush, the worse President in the history of the United States, has greatly weakened this nation even more than his unnecessary war by trying to ignore the Constitution of the United States. Impeachment is the only answer to rid this great nation of this Bush/Cheney plague!

You give those who violate the rule of law far too much credit. What Adams, Jefferson, Jackson, Wilson, and Roosevelt did was flatly and obviously a violation of the US Constitution, and those presidents should have been called out for it at the time by Supreme Courts that fundamentally did not appreciate the concept of individual rights- either because the concept was too new for them to understand or because they had insufficient legal tradition to rely upon.

It is no accident that the one president who had legitimate Constitutional authority to do what he did- Lincoln- is remembered as the greatest of them all. It is also no accident that the concept of substantive equal protection only truly began after the Civil Rights Movement made it glaringly obvious that the courts were the most viable system for enforcement of social justice.

“A national security concern does not become a war simply because it is baptized as such. President George W. Bush’s questionable use of the metaphor “war on terror” to justify indefinite detention of suspects, warrantless eavesdropping and spying on the reading habits of citizens could invite from historians even more opprobrium than they have cast on the repressive actions taken by other presidents when the survival of the United States was at risk.”

My fear (and perhaps that of others in the genuinely Orwellian times we know seem to live in) is this: If Mr. Bush has instituted his breathtaking expansion of the powers of the Executive Branch of government by simply signing secret “executive orders” which – by virtue of other executive orders he signed early in his administration – will remain highly classified for as much as 30 years after he leaves office, how will future historians EVER be able to hold him accountable for all of the many things he may have already done to trample the civil liberties of law-abiding U.S. citizens? And how will those people whose civil liberties were abridged in ways that perhaps affected the course of their personal and professional lives in irrevocable ways ever be aware of just what was done to them in their own lifetimes? As the economist John Maynard Keynes famously noted, “In the long run, we are all dead.” I, for one, would like to know exactly how Mr. Bush, Mr. Gonzales, et. al. rewrote the Fourth Amendment of the Constitution to suit their own personal political interests while there is still breath in my 53-year-old body.

The Vulcans, and more to the point their divinely inspired leaders who claim to live by the Book, would do well to remember Proverbs 16:18: “Pride goes before the fall”, a reference to unchecked hubris which tempts one into overreaching out a sense of supposed greatness, only to come face to face with his inevitable shortcomings and ultimate destruction.

Many times the Bush administration has used the example of World War 2 to justify their actions, it makes me cringe when I hear this.
Even Roosevelt does not come out squeaky clean during that war, due to what happened to Japanese Americans, but even then there were people who objected, I know I did. I think many people just went along with it simply because we were in a war that was absolutely necessary for us to win.
I don’t think history will look kindly at this administration, that is, if we are even able to undo the damage done by this administration.
Ruth Beazer

Looking at all these acts in one place, they all seem excessive. Many of them overly so. Of course, that is with the advantage of 20/20 hindsight. Some may have ben deliberately so as to expand their individual power. Looking at the incumbent, I doubt he knows what a metaphor is. As with most of his “policies” or “strategizings”, they are really slogans in search of a policy. Their role model has been Madison Avenue, similar to the “new and improved” laundry detergent without any idea of what that means. And negative slogans for the oppositon. “Stay the course” whatever that might mean (whatever Bush says it does) as opposed to “cut and run”. Reality? Just another type of show between the commercials. The alleged “War on Terror” fails both as a policy and a concept. Usually it falls on successive generations to fix the problem. I’m just curious as to how many of Jackson’s progeny wish they could find an Indian, any Indian, any tribe so they can build a legal gambling casino.

History has already begun to “cast opprobrium” on the unfortunate slogan “war on terror”. 9/11 was a terrorist crime, but a crime nonetheless — and not an act of war. Bush and his administration preferred, for their own purposes, to call it a war. I doubt we would be in the mess we are in if unremitting police action had been taken in Afghanistan to capture Osama bin Laden “dead or alive” (as Bush had declared) — instead of cutting to run after oil and military bases in Sadaam’s Iraq. US lives and treasure have been squandered by Bush, Cheney & Cronies in failing to get the oil, failing to establish a welcome for the military in Iraq, failing to bring freedom and democracy to the Muslim Middle East, and exacerbating, not quelling terrorism. This calls for immediate impeachment, because it was based on deceiving congress and the people, while undermining the security of our country — high crimes are constitutional reason for impeachment.

Presidents will attempt to increase their power at the expense of other branches of government and even the people. This despite those provisions of the Constitution that make it clear that powers not granted specifically should not be inferred.

That this proclivity should increase in time of actual or declared war should surprise nobody. For that reason, it is incumbent on the other branches of government to apply greater skepticism to those attempts. Sadly, that rarely happens. “Perilous Times: Free Speech in Wartime” by Geoffrey R. Stone, canvasses the examples cited by Prof. Smith, as well as others, to demonstrate how misguided such efforts are. The dangers that supposedly threaten the continuing existence of teh United States quickly fade into oblivion when the immediate threat evaporates. The Alien and Sedition Acts, the wartime internment of those of Japanese ancestry and other examples should provide more than enough basis for a discerning and jaundiced view of any effort such as that behind the PATRIOT Act, for example. The failure of Congress to do so, and the limited response by the Supreme Court and the lower federal courts, represent a greater threat to the liberties of Americans, the supposed reason that this country engaged in the “war on terror” and the invasion of Iraq, than those against whom it was directed. Its use in cases other than those against terrorists comprises another abuse of authority by this administration that undermines its claim that it seeks only what’s best for us.

“But the crucial issue is the extent to which the nation is threatened.”

The matter is far from being that simple. The crucial issues of the current crisis are:

1. The lack of defensible emergency government provisions in the constitution.

2. A Cold War history that has made imperialism, militarism and permanent emergency government normal facts of life for most Americans.

3. The unwillingness or inability of the juridical and legislative branches of government along with an informed and active citizenry to check the dictatorial ambitions of any executive.

These conditions provide any current or future president with the capacity to cross the Rubicon. He or she only needs the political will and the opportunity to take this step. The oafish Bush and sinister Cheney have brought us to the brink. One wonders what they would have accomplished had they not had a fool running the Pentagon.

Upon the successful completion of our President’s “War on Terror”, I sincerely hope we continue with a “War on Anger” followed up with a “War on Sadness and Dismay”. Wait, maybe we should first conduct a “War on Stupidity”, indeed that may be the true war that ends all wars.

Presidents for the most part seem to take the Constitution seriously but unquestionably war will strain their abilities to live within its bounds. War will strain the ability of all its participants to uphold values that routinely pertain in normal times.

FDR’s internment of Japanese Americans during WW II was despicable, but as Smith points out it was at least generally justifiable in light of the very tangible threat the country was then faced with. Had it not been for that threat it is probably safe to say that Roosevelt would never have taken such an action. He was not using the declaration of war as a means to impose policy that he otherwise wished to pursue but had, prior to the attack, no basis for promulgating. The same obviously could be said for Lincoln.

Despite his declarations to the contrary however, GW Bush is not a war president. His so-called war on terror (which has since become a terrible war) was contrived from the very beginning to impose a premeditated foreign policy aimed at vailidating the neocon philosophies of his advisors and agrandizing US power in world affairs. Not a little of the effort was also aimed at securing control of natural resources in the Middle East and pursuing a warped quixotic quest for something he has chosen to refer to as democarcy. There was no basis for his actions. and certainly if there is no justification for his having caused tens of thousands of death, there is no basis for his having suspended the Constitution in order to prosecute this non-war. He will be rightly condemned by history for having done so.

The first thing the Democratic-controlled Congress and Democratic presidential contnders should do is to refrain from using the term ‘war on terror’ – it is a holdover from this Bush administration, totally undefensible, and about as meaningless as ‘war on drugs’ war on poverty, and any other sweeping metaphor that has grown legs within the spin cycle of DC.

Let’s move beyond Bush’s war on terror as we extricate our nation from this ill-conceived, never-thought-out disater of a pre-emptive war brought on by a rogue, vindictive and cowardly president and his beholden neofights.

President Bush’s aggressive attempts to expand executive power in wartime would be tolerated and even embraced if he actually used the power he demands to win the war. He insists he’s a “war president” but he has set a record for vacation days in office. He demands repeated and extended tours from volunteers but he won’t ask Americans for a draft. He’s spending a trillion dollars in this “war on terror” while granting tax cuts to the people who have the most to protect. It’s one thing to seek Draconian measures if your survival depends on it, but for every one he seeks, he contradicts himaelf, behaving as if this war is someone else’s problem, something he can just delegate or subcontract. The point of getting the tools is using them. Bush isn’t, hasn’t, and won’t. He’s not a leader. He’s a posturer.

Sounds right to me. Robert Higgs, the economic/libertarian historian, has also argued persuasively that Presidents used wars and security concerns (genuine and phony) to replace the old Constitution, which limited federal powers, with a new one that does not.

The argument could be made more simply without sacrificing much accuracy: The federal government expands its powers and enriches its purse by all available means, and the written Constitution (which is just a piece of paper, after all) has little power to prevent this. We haven’t needed wars or national security concerns to justify massive increases in Medicare and Social Security; the federal government’s has expanded these programs and transferred their costs to future generations merely because no one can stop it from doing so.

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” — Article 1, Section 9, clause 2, U.S. Constitution

During the Civil War, which was clearly a “Rebellion,” Congress absolutely had the right to suspend hapeas corpus. Do not lump Lincon’s actions in with the others. Get the facts straight.

It should also be noted that Adams lost the election over the Alien and Sedition Acts, and Jefferson (as you noted) got slapped down by the courts. More recently, however, courts seem to have been loath to step in and protect our liberties.

Perhaps Jefferson was right when he mused that there should be a revolution every 19 years — we seem to have forgotten how important individual liberty is, especially in times of stress.

Professor Smith makes several excellent points. It is shocking to see how the U.S. Constitution has been misinterpreted and misused by presidents over the history of this country. Indeed, it is the failure of liberalism, which allows and even justifies dictatorial rule during periods of “crisis” whether the crisis is manufactured or real. As Justice Jackson stated in his concurring opinion in the Steel Seizure Case, the Framers may have suspected that “emergency powers would tend to kindle emergencies.” As I read Smith’s column, I could not help but think about the decrees, which were passed in the wake of the Reichstag Fire in Germany in 1933 (including the Reichstag Fire Decree taking away many civil liberties, the banning of political parties other than the Nazi Party, and most importantly, the Enabling Act). Under the guise of a “national security threat,” Hitler utilized the weak Weimar Constitution to establish unlimited power. While the comparison to the current situation in the U.S., thank goodness, is not exactly similar, we should be aware of the danger and be vigilant to protect ourselves and our country from this extreme perversion of liberalism.

A parade of horrors doesn’t excuse the least objectionable — were any of these abuses truly justified by national security? Did they not all damage our democracy and boast of being the beacon of liberty?

Likewise, there must be a distinction drawn between the tarnish of unConstitutional, relatively violence-free Japanese internment camps in contrast to the Bush administration’s unspeakable package promoting torture, chambers of torture like Abu Ghraib, multiple secret prisons, and permanent incarceration without indictments?

And I suspect we don’t know all that’s happening, especially beyond American influence, the worst that remains out of sight. Would history excuse a modern tyrant coming to power by defending himself as not as bad as Hitler?

Our nation is first a nation of laws. Presidents have taken war-time powers to rule beyond the law before. This President however has trampled every law that conflicts with his using war-time powers as an excuse. It demeens the very existance of laws in this country.

The Fourth Amendment, FISA, detention of enemy combatants, they can justify just about anything and everthing with wartime powers. Just ask John Woo.

The American political system’s balance of powers,
perhaps the grandest concept in the Constitution,
is under assault by Bush’s imperial presidency.

Driven by religious moralism, this administration
has lied us into war. Wiretaps and other invasions of individual privacy are undertaken without proper court order. The executive branch purges the federal court system of judges who do not pass a political litmus test. The President, through
“signing statements,” claims the right not to
enforce laws he doesn’t agree with.

The transition from an open society to a police states is a matter of small steps. We are, unfortunately, well along the journey.